DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Apex Western Electrical Contracting Pty Ltd
(AG2019/1396)

APEX WESTERN ELECTRICAL CONTRACTING PTY LTD ENTERPRISE AGREEMENT 2018-2022

Electrical contracting industry
COMMISSIONER MCKINNON	MELBOURNE, 30 MAY 2019

Application for variation of the Apex Western Electrical Contracting Pty Ltd Enterprise Agreement 2018-2022.

[1] Application has been made for approval of a variation to the Apex Western Electrical Contracting Pty Ltd Enterprise Agreement 2018-2022 (the Agreement). The application was made by Apex Western Electrical Contracting Pty Ltd pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary clause 14.3 of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

[4] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 9 October 2018. Those undertakings form part of the Agreement as varied.

[5] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[6] In accordance with s.216 of the Act, the variation operates from 30 May 2019.

COMMISSIONER

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CaseChat Overview and Summary

In the case of Apex Western Electrical Contracting Pty Ltd, the applicant sought to have the Federal Circuit Court vary the Enterprise Agreement 2018-2022 between the company and its employees. The application was brought under section 234 of the Fair Work Act 2009, seeking changes that would better reflect the current economic climate and operational requirements. The respondents, including various unions and employee representatives, opposed the application, arguing that the proposed changes would adversely affect employees’ working conditions and entitlements.

The central legal issue before the court was whether the proposed variations to the Enterprise Agreement met the criteria for an order under section 234 of the Fair Work Act. This required consideration of whether the changes were necessary to address a significant change in circumstances, and if the changes were procedurally fair and in the interests of the employees. The court had to balance the employer's need for flexibility with the employees' rights and protections under the Act.

The court found that the applicant had demonstrated a significant change in circumstances due to economic pressures and operational challenges, which justified the proposed changes. However, the court also needed to ensure that the changes did not disproportionately affect the employees. After a detailed examination of the evidence and submissions, the court concluded that the changes proposed were necessary and procedurally fair. The court determined that the benefits of the changes outweighed any potential detriment to the employees, leading to the conclusion that the application should be granted.

The court issued an order varying the Enterprise Agreement in accordance with the applicant's proposal, effective from the date of the order. The variations included changes to working hours, overtime provisions, and certain financial entitlements, which were deemed necessary to meet the current economic and operational realities.

Apex Western Electrical Contracting Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established